Film / TV

This note argues that morals clauses remain important in talent contracts, despite the liberalization of the modern moral climate. Morals clauses, express and implied, are employed to terminate a contract when talent misbehaves. These clauses have a storied history, but are still relevant despite the considerable changes in social norms since they were first implemented. These clauses are applicable to various sectors of the entertainment industry, including motion picture, television, athletics, and advertising. Their popularity has also led to the implementation of reverse morals clauses, which protect the employee from improprieties of the employer. The outgrowth of Internet and social media has only made such clauses more important, by providing more opportunities for talent misbehavior and public embarrassment. This note finds that morals clauses remain relevant, effectual, nuanced, and flexible, well suited to adapt to a changing legal and cultural landscape.

Reality television is a modern phenomenon that can be found on both daytime and primetime television. Using “real” people creates unique problems for production teams. Real people do not have the industry knowledge or legal assistance from industry professionals to actively participate in contract negotiations. As “unscripted” shows, reality television presents new risks the producers must consider while developing contracts. While most entertainment contracts are longer and more restrictive than employment contracts for other industries, reality television contracts are even more complex. Recently, questions about the enforceability of these contracts have begun to emerge. If litigated, the courts, rather than a jury, would decide whether these contracts were void due to unconscionability. This note argues that as currently drafted, reality television contracts are not unconscionable, even though at first read they might seem unfair.

When NBC News suspended Keith Olbermann for donating to political campaigns and thus violating company policies, the news reporters became the news. The punditry tried to assess whether or not NBC’s decision to suspend their controversial commentator made sense from both journalistic and legal perspectives. Benjamin Kabak argues (i) that newsroom standards and practices codes do not graph accurately onto the demands of the partisan nature of television news commentary and (ii) that Keith Olbermann’s suspension, while likely a legal exercise of NBC’s powers, is highly problematic in the context of a news commentary program with a clear political bend.

Recently, the Court of Chancery in eBay v. Newmark doubted the ability of firms to cite a threat to corporate culture as legitimate grounds for implementing a takeover defense. Just over a year ago, the Court in Amylinexpressed doubt about a firm’s ability to impede changes of control by embedding financial penalties, for lack of a better word, in otherwise ordinary business transactions. Jason Tyler argues that Hollywood presents an exceptional context, or, to put it another way, that the economic reality of movie studios pushes at the logical assumptions that underlie the eBay and Amylinholdings. Accordingly, if applied broadly, eBay and Amylin may threaten movie studios in particular.

For U.S. filmmakers, the People’s Republic of China represents a prodigious market opportunity. Yet, true exploitation of the market is simply chimerical due to an obstinate web of import quotas, censorship, and government intervention, all founded upon a guise of cultural protectionism.Brian R. Byrne argues that: (i) China’s authoritarian approach to film distribution, coupled with its deficient intellectual property regime, actually promotes the dissemination of Western culture within its borders – a direct perversion of its intentions; and (ii) in order to achieve its cultural objectives, China must undertake a number of key reforms.

On June 24, 2008, ABC Executive Vice President Howard Davine wrote a memo to ABC’s executive producers and show-runners which suggested that there may be no need to license a foreign television show when all that is being taken from the show is the “underlying premise.”Alexandra Schwartz argues that there is, in fact, no difference between the decisions to license a U.S. format and a foreign format. While Mr. Davine’s memo may be provocative, Schwartz concludes that it reaches a sensible legal solution. Simply put, show-runners and executive producers need not contract and pay for every concept they produce as a result of seeing or hearing about a foreign TV show, movie, or book.